JOSEPH MICHAEL JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed denial of postconviction relief where trial court failed to adequately address defendant's claim that counsel prevented him from testifying, requiring remand for evidentiary hearing on ineffective assistance of counsel.
A defendant claiming ineffective assistance of counsel based on counsel's refusal to permit testimony must have the trial court conduct an evidentiary hearing or make a record showing that the claim is conclusively refuted.
[1] When a defendant claims ineffective assistance of counsel based on counsel's refusal to permit the defendant to testify, the trial court must conduct an evidentiary heari…
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Join FLexlaw to unlock all legal intelligence“a defendant who claims ineffective assistance of counsel based on counsel's refusal to permit defendant to testify must meet both prongs of Strickland”
Court citing Osorio v. State for the standard applicable to ineffective assistance claims based on counsel preventing testimony
Johnson was convicted at trial and sought postconviction relief, claiming his trial attorney refused to permit him to testify in his own defense.…
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PER CURIAM.
Joseph Johnson appeals the trial court’s order denying his motion for postconvietion relief. Only one ground cited by Johnson merits discussion, upon which we reverse.
Johnson claims that his trial attorney refused to permit him to take the stand in his own defense. The trial court concluded that Johnson’s right to testify on his behalf had been waived, and that he had not shown that his failure to testify resulted in any prejudice. However, the attachments to the court order do not show that Johnson’s right to testify in his own defense was waived, nor do they refute Johnson’s claim of prejudice resulting from the jury not hearing his testimony. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Oisorio v. State, 676 So. 2d 1363, 1364 (Fla.1996) (holding that a defendant who claims ineffective assistance of counsel based on counsel’s refusal to permit defendant to testify must meet both prongs of Strickland).
Accordingly, this case is remanded for the trial to court to either conduct an evidentiary hearing, or to deny the claim without a hearing if record attachments conclusively refute Johnson’s allegations concerning whether counsel provided ineffective assistance in denying him his right to testify on his behalf.
Affirmed in part, reversed in part, and remanded.
THREADGILL, A.C.J., and FULMER and SALCINES, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dames v. State, 773 So. 2d 563 (Fla. 2d DCA 2000)…, that would have entitled him to instruction and showed he was prejudiced by counsel’s alleged error). Based on the limited record before us, we cannot conclude that this omission did not affect the outcome of the proceedings. Cf. Johnson v. State, 723 So. 2d 879 (Fla. 2d DCA 1998) (reversing summary denial of rule 3.850 motion claiming counsel refused to allow defendant to take stand in own defense where attachments did not show that defendant waived his right to testify or refute claim of prejudice resulti…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Oisorio v. State, 676 So. 2d 1363 (Fla. 1996)